A pro-ACTA resolution hailing the progress made in the accord’s negotiations was adopted by the European Parliament on 24 November by 331 to 294 votes and 11 abstentions. In the resolution, which aims to pave the way for ratification, the parliament says it was “fully aware that the agreement negotiated will not solve the complex and multi-dimensional problem of counterfeiting” but regarded it as “a step in the right direction.”
It also reiterated that “combating counterfeiting is a priority in its internal and international political strategy.” An alternative draft resolution more critical of the accord was proposed by Socialists, Greens, Left and Liberals, but was rejected.
Legal experts are currently putting the final touches to the wording of the accord at a meeting in Sydney that is due to end on 3 December.
Read the resolution
Danger of international accord on repressive policies in final ACTA talks
The countries participating in the Anti-Counterfeiting Trade Agreement negotiations reportedly agreed on a consolidated and virtually final version on 2 October. The remaining details are to be resolved by email and no further round of negotiations is currently envisaged. The main point of divergence continues to be a US desire for patents to be excluded from the ACTA chapter dealing with civil judicial procedures.
The final version falls short of initial US demands for the reinforcement of intellectual property rights including “three strikes and you’re out” legislation under which Internet Service Providers would have to disconnect illegal downloaders. The United States wanted specific penal procedures and sanctions to be obligatory but under the final version they are only possible.
Reporters Without Borders continues to condemn a number of problems posed by ACTA. ISPs are not obliged to provide the holders of intellectual property rights with the identity of the owner of an IP address suspected of infringing their rights. But they are strongly encouraged to do so. Anticipating the creation of a committee tasked with updating the accord’s provisions, articles 5 and 6 will allow signatories to reverse their non-binding nature. This violates democratic principles.
The final version retains four key provisions criticised by free speech organisations: the obligation to promote commercial cooperation in combating counterfeiting, the right of the competent authorities to ask ISPs to identify users, the obligation to penalise metadata suppression and the evasion of Digital Rights Management, and the ability of governments to define legal exceptions in cases of DRM evasion.
While less draconian, the Internet chapter continues to contain provisions for fines and imprisonment.
As the 11th round of negotiations for an Anti-Counterfeiting Trade Agreement (ACTA) gets under way in Tokyo, Reporters Without Borders reiterates its opposition to the way these talks are being held behind closed doors without democratic consultation and to the potentially repressive positions being taken by the countries involved. The negotiators aim to conclude the accord or at least finalize its main points, but the latest draft is unacceptable and must be changed if not abandoned altogether.
According to the latest leaks, on 25 August, the wording of the section on the Internet entitled “Special Measures Related to Technological Enforcement of Intellectual Property in the Digital Environment” has been softened but it still gives governments a lot of scope to introduce repressive provisions including filtering and a “graduated response” leading to the disconnection of illegal downloaders.
The section on “Institutional Arrangements” envisages the creation of an “ACTA committee” that could have the power to made subsequent changes to the accord, called “amendments,” without any form of democratic control.
In the ACTA’s latest version, Internet service providers and companies that provide website hosting services are no longer required to take repressive measures against illegal downloaders and civil sanctions have instead been included in the “General Obligations with Respect to Enforcement.”
But ISPs and other technical intermediaries are still held responsible for content and must now cooperate and reach contractual agreements with copyright holders and, if required, provide them with evidence of copyright violations. Reporters Without Borders fears that legal and business pressure will force them to introduce Internet filtering in order to avoid paying heavy damages.
Under this new approach, technical intermediaries would be forced to surrender the personal data of clients to copyright holders. This could have disastrous consequences for the privacy of Internet users, especially if the ACTA is extended to countries that gather personal information about dissidents in order to silence them.
The ACTA recommends the use of criminal proceedings for trademark counterfeiting and certain kinds of illegal downloading. Article 2.14.4 on “Criminal Offences” also provides for such proceedings against any intermediary who is deemed to have assisted such activity. Reporters Without Borders thinks this could foster an oppressive climate for all Internet users.
The dangerous concept of “commercial scale” is introduced to determine who should or should not be punished in article 2.14.1, which says: “Each party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale.” The term “scale” is vague and could easily be exploited to extend the provision’s scope. Commercial intent should be the only criteria.
Responsibility of technical intermediaries – crucial issue for Internet’s future
The responsibility of technical intermediaries is an issue that does not concern only the ACTA. In a ruling criticised at the time by Reporters Without Borders (http://en.rsf.org/italy-google-conviction-could-lead-to-24-02-2010,36530.html), an Italian court imposed suspended prison sentences on three Google executives last February after finding them guilty of violating a handicapped teenager’s privacy because a video of him was posted on Google Video in 2006.
A Madrid commercial court took the contrary view in a decision issued on appeal on 24 September. The court recognised that the posting of Telecinco video footage on YouTube was a violation of the TV station’s copyright but ruled that, as a hosting service, YouTube was not responsible. YouTube only had an obligation to cooperate with the copyright holders by withdrawing the material once the violation had been pointed out, the court ruled.
Watch the Quadrature du Net video about the ACTA.